16-527
McNab v. Doe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 7th day of April, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
DENNIS JACOBS,
Circuit Judges,
LEWIS A. KAPLAN, *
District Judge.
_____________________________________
Radcliffe O'Brian McNab,
Plaintiff - Appellant,
v. 16-527
C.O. John Doe #1 a.k.a. Mo, Correctional Officer
of Ulster Correctional Facility, R. Miller,
Correctional Officer; Ulster Correctional Facility,
Gutierrez, C.O.,
Defendant - Appellees,
The State of New York, C.O. Miller, Correctional
Officer of Ulster Correctional Facility, John Doe #2,
Correctional Officer of Ulster Correctional Facility,
Eric T. Schneiderman, New York State Attorney
General, Brian Fischer, Commissioner, New York
State Department of Corrections and Community
* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New
York, sitting by designation.
Supervision, Scott C. Carlsen, Superintendent, Ulster
Correctional Facility, Robert I. Morton, Deputy
Superintendent, Ulster Correctional Facility, Sgt. Bell,
Riverview Correctional Facility, R. Wood, Correctional
Officer, Ulster Correctional Facility, Black, FOIL Officer,
Ulster Correctional Facility,
Defendants.
_____________________________________
FOR PLAINTIFF-APPELLANT: RADCLIFFE O’BRIAN MCNAB, pro se,
Mount Vernon, New York.
FOR DEFENDANT-APPELLEE R. MILLER: FREDERICK A. BRODIE (with Barbara
Underwood and Andrea Oser on the brief),
for Eric T. Schneiderman, Attorney General
of the State of New York, Albany, New
York.
Appeal from a judgment of the United States District Court for the Northern District of
New York, Suddaby, J.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Radcliffe O’Brian McNab, pro se, appeals the district court’s judgment
dismissing his 42 U.S.C. § 1983 complaint. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
“[I]n the absence of prejudice to an appellee, we read a pro se appellant’s appeal from an
order closing the case as constituting an appeal from all prior orders.” Elliott v. City of Hartford,
823 F.3d 170, 173 (2d Cir. 2016). Seeing no prejudice here, we have jurisdiction to review the
district court’s orders dismissing Appellant’s complaint in part, as well as the final order adopting
the magistrate judge’s report and recommendation and granting defendants summary judgment on
all remaining claims.
2
Sua sponte dismissals are reviewed de novo. Giano v. Goord, 250 F.3d 146, 149-50 (2d
Cir. 2001). To survive dismissal, a complaint must plead “enough facts to state a claim to relief
that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), and
“allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
We review de novo the order granting summary judgment, and focus on whether the
district court properly concluded that there was no genuine issue as to any material fact and the
moving party was entitled to judgment as a matter of law. Sotomayor v. City of New York, 713
F.3d 163, 164 (2d Cir. 2013). We construe evidence and draw all reasonable inferences in the
non-moving party’s favor. Id. Summary judgment is appropriate “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In dismissing Appellant’s Eighth Amendment claim, the district court relied on Boddie v.
Schnieder, 105 F.3d 857 (2d Cir. 1997), for the proposition that a single incident of sexual abuse
does not constitute cruel and unusual punishment. Our decision in Crawford v. Cuomo, 796 F.3d
252 (2d Cir. 2015), which did not overrule Boddie, held that “contemporary standards of decency”
had changed and even a single instance of sexual contact by a corrections officer that “serves no
penological purpose and is undertaken with the intent to gratify the officer’s sexual desire or
humiliate the inmate[] violates the Eighth Amendment.” Id. at 257, 259-60. Accepting
Appellant’s allegations as true, as we must at the pleading stage, Iqbal, 556 U.S. at 678, he asserted
a plausible Eighth Amendment claim under Crawford.
3
Nevertheless, as the district court ruled, Appellant failed to exhaust his administrative
remedies. The Prison Litigation Reform Act (“PLRA”) bars prisoners from bringing suit “until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The
exhaustion requirement is mandatory, as long as remedies are actually available. Ross v. Blake,
136 S. Ct. 1850, 1856-59 (2016). As relevant here, remedies are unavailable “when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id. at 1860. Ross thus limits the exceptions and “fram[es]
the exception issue entirely within the context of whether administrative remedies were actually
available to the aggrieved inmate.” Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
Even assuming that Appellant’s letter to a supervisory official was sufficient to initiate the
inmate grievance process, he does not dispute that he failed to appeal the rejection of that
complaint as “without merit.” He thus failed to properly exhaust his administrative remedies by
“complet[ing] the administrative review process in accordance with the applicable procedural
rules.” Woodford v. Ngo, 548 U.S. 81, 88 (2006).
Appellant asserted that defendants tried to intimidate him, and intimidation can excuse the
failure to exhaust. Ross, 136 S. Ct. at 1860. However, none of the actions allegedly taken by the
defendants actually prevented Appellant from submitting his complaint letter. Ruggiero v. Cnty.
of Orange, 467 F.3d 170, 178 (2d Cir. 2006) (failure to exhaust not excused by defendants’ actions
where plaintiff “point[ed] to no affirmative act by prison officials that . . . prevented him from
pursuing administrative remedies”). Appellant was able to take the first step in the grievance
process, and nothing in the record suggests he was intimidated from taking the next step (appealing
the rejection of his informal grievance).
4
We have considered all of Appellant’s remaining arguments and find in them no basis for
reversal. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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